Sage v. Switzer, No. 8149.

• Court: Supreme Court of West Virginia
• Writing for the Court: HATCHER
• Citation: 182 S.E. 797
• Docket Number: No. 8149.
• Decision Date: 03 December 1935
• Parties: LE SAGE et al. v. SWITZER et al.

182 S.E. 797

LE SAGE et al.
v.
SWITZER et al.

No. 8149.

Supreme Court of Appeals of West Virginia.

Dec. 3, 1935.

Syllabus by the Court.

Acts 1921, c. 65, amended and re-enacted Code 1931, 55-2-5, infringes the Constitution of the United States, art. 1, § 10, and the Constitution of West Virginia, art. 3, § 4 (which forbid the passage of a state law impairing the obligation of contracts), so far as the act, after a specified period, would invalidate ma terial lawful rights incident to a deed of trust executed prior to the passage of the act.

Appeal from Circuit Court, Cabell County.

Action by Mary E. Le Sage and others against Rufus Switzer, trustee, and others. From a decree dismissing the bill, plaintiffs appeal.

Affirmed.

Peyton, Winters & Hereford, of Huntington, for appellants.

G. M. McLaughlin and Walter M. Parker, both of Huntington, for appellees.

HATCHER, Judge.

Sale of property under a deed of trust executed by Mary E. Le Sage, Anna H. Le Sage, and their respective husbands (hereinafter referred to as plaintiffs) in 1909 to secure a note was not attempted until 1934. This suit was brought by the plaintiffs to enjoin the sale on the sole ground that all rights under the deed had been extinguished by Acts 1921, c. 65, amended and re-enacted in Code 1931, 55-2-5. The circuit court dismissed the bill, and the plaintiffs appealed.

The part of the act of 1921 pertinent here follows: "No lien, reserved on the face of any conveyance of real estate, or lien created by any deed of trust or mortgage on real estate, shall be valid or binding as a lien on such real estate, after the expiration of twenty years from the date on which the debt or obligation secured thereby becomes due; and the provisions of this act shall apply, with like effect, to every such lien now existing, as well as to every such lien hereafter reserved or created."

As amended and re-enacted in 1931, the act provided that the limitation of twenty years should run from the original due date of the debt secured, and that no extension or renewal of the debt should enable the lien to survive the limitation.

It seems worthwhile to preface this discussion with a brief statement of the rationale of ordinary statutes of limitations. It is hornbook law that a state "may organize its judicial tribunals according to its notions of policy, and may prescribe the time within which suits shall be litigated in its courts." 17 R.C.L., subject

[182 S.E. 798]

Limitation of Actions, § 7. The ordinary statute of limitations does not qualify or extinguish directly a single substantive right arising from a contract, but merely withdraws from the parties, after a specified period, the privilege of using the courts to enforce the contract. 17 R.C. L, supra, § 10; Cooley, Const. Limitations (8th Ed.) p. 760 et seq.; Black, Const. Prohibitions, § ISO. After the statute has run against a debt, a creditor remains entitled to use any lawful means available for collecting his debt which does not involve court action. Williston on Contracts, § 2002; Minor on Real Property (2d Ed.) § 611; Roots v. Salt Co., 27 W.Va. 483, 494; Hull's Adm'r v. Hull's Heirs, 35 W.Va. 155, 165, 13 S.E. 49, 29 Am.St.Rep. 800; Evans v. Johnson, 39 W.Va. 299, 19 S.E. 623, 23 L.R.A. 737, 45 Am.St.Rep. 912; Morgan v. Coal Co, 97 W.Va. 83, 97, 124 S.E. 591. If secured by a deed of trust, he may still have the trust enforced, since sale by the trustee (under the deed) requires no assistance from the courts. Goldfrank v. Young, 64 Tex. 432; Men-zel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am.St.Rep. 647; Booker v. Armstrong, 93 Mo. 49, 4 S.W. 727; Grant v. Burr, 54 Cal. 298; Criss v. Criss, 28 W.Va. 388, 396. There is no controversy over these abstractions. Plaintiff's brief uses them as "historic background" to emphasize the innovations on limitation statutes contained in the following provisions of the act of 1921: "No lien * * * shall be valid * * * after the expiration of twenty years, * * * and the provisions of this act shall apply * * * to every such lien now existing." Thus, instead of the limitation relating to court action on liens as other statutes had done, this act proposed to invalidate the liens themselves at the termination of the specified period. Instead of being prospective as ordinary statutes are, this act proposed to be retroactive. So far as the act is prospective only, there is no challenge. So far as it would be retroactive, it is confronted by the following inhibition of the Constitution of the United States, art. 1, § 10: "No State shall * * * pass any * * * Law impairing the Obligation of Contracts." The act is also confronted by a like inhibition in the Constitution of West Virginia, art. 3, § 4.

We have found no clearer conception of the purpose of this inhibition than that expressed by Associate Justice Trimble in Ogden v. Saunders, 12 Wheat. 213, 327, 6 L.Ed. 606,. as follows: "The great principle intended to be established by the constitution, was the inviolability of the obligation of contracts, as the obligation existed and was recognised by the laws in force at the time the contracts were made. It furnished to the legislatures of the states a simple and obvious rule of justice, which, * * * whilst it leaves them at full liberty to legislate upon the subject of all future contracts, and assign to them either no obligation, or such qualified obligation as, in their opinion, may consist with sound policy, and the good of the people; it prohibits them from rctrospecting upon...